Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK47185, Donna Levin, Temporary Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BOREN, P.J.
In this dependency appeal, 12-year-old R. J. (the child) was originally placed under legal guardianship through the probate court. The juvenile court removed the child from the custody of the legal guardian, D. B. (the child’s paternal aunt), maintained the child’s placement in a foster home, ordered visitation, conjoint therapy and reunification services for both D. B. and N. L. (mother), and continued the matter to March 4, 2008. Mother asserts that the juvenile court should have placed the child with her, as recommended by the Department of Children and Family Services (DCFS).
Mother contends that substantial evidence does not support the court’s disposition order denying her physical custody, and that the court proceeded under the wrong statute, failed to make a proper finding of detriment, failed to state any factual basis for its decision, and abused its discretion by acting without the benefit of probate court guardianship documents. We find the contentions unavailing and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Mother and father never married, and the child is one of their three daughters. In 1999, mother and father separated, and mother became homeless, an alcoholic, and unable to support her daughters. Mother voluntarily placed her children with their father because she could not properly care for them. Father cared for the children until 2001, when he was sentenced to four months in the county jail for domestic violence. Then, father’s sister, D. B., went to probate court and obtained guardianship of his three daughters.
Father is not a party to this appeal, and the child’s two siblings are not subjects of this appeal.
Upon father’s release from the county jail, he attended assigned classes, visited his children, and tried to regain custody. However, D. B. was “very uncooperative.” In 2004, the probate court denied the father’s petition to regain custody of his children. According to father, D. B. obtained a restraining order against both father and mother. During the guardianship period, D. B. and the paternal grandmother knew that mother lived close by their home. However, according to mother, they discouraged mother’s contact with the children. Mother acknowledged that she did not see the child “for about two years.”
Meanwhile, mother successfully addressed her alcohol addiction issues. She completed the Prototypes Treatment Plan (Prototypes) rehabilitation program in January of 2005, and had been sober for four years (as of June of 2007). Mother was employed at Goodwill Industries, where she was viewed as a model success story, she was profiled in their magazine, and her story was used in a Goodwill Industries fund-raising letter. As of April of 2007, mother was employed full-time at Prototypes as a domestic violence counselor and earned $925 every two weeks. Mother maintained her own residence for over two years and had room for the child to live with her. A school was near mother’s residence, and child care and after-school care programs were available.
In April of 2007, DCFS filed a Welfare and Institutions Code section 300 petition to declare the child a dependent of the juvenile court. The petition alleged that the child’s cousin had physically abused her with a belt and cord and had scratched her face and neck causing bruises, and that D. B. knew of the abuse but failed to protect the child. The petition was filed with respect to D. B. as the child’s legal guardian; no allegations in the petition pertained to mother or father.
All further statutory references are to the Welfare and Institutions Code.
A detention hearing ensued. According to a DCFS report, Los Angeles Child Guidance Clinic personnel suspected the child was being emotionally abused by D. B. and physically abused by the child’s cousin. As the child related to the social worker, D. B. did not like her, wanted her to leave the house, blamed her for the death of the family dog, and condoned the cousin’s physically abusing her. The child stated she was on Prozac medication for depression and was afraid of going back to this family because she might be hurt again.
D. B. related to the social worker that she had had custody of the child since she was four years old and denied that anyone was hitting the child. D. B. asserted that the child had been in a mental hospital on several occasions for a host of mental and behavioral problems (i.e., opposition defiance disorder, ADD, ADHD, eucopresis and enuresis (requiring the wearing of a diaper)), and that the child was taking various prescription medications. The paternal grandmother also stated to the social worker that no one in the house was hitting the child. Similarly, the child’s sister asserted she never witnessed the cousin’s hitting the child, and the cousin denied the allegation. The grandmother characterized the child as manipulative and a habitual liar.
The juvenile court detained the child and placed her in shelter care. The court gave D. B. monitored visits pending the next hearing. It also ordered DCFS to interview the paternal grandmother to consider the possibility of placement with her, though the child indicated through counsel that she did not want to live with the grandmother. The court granted DCFS the discretion to release the child to any appropriate relative, and scheduled the matter for a pretrial resolution conference.
At the May 11, 2007, conference father and mother were present and represented by counsel. The child’s attorney indicated the child did not want to be returned to D. B.’s home and sought a “cooling off period.” The court stated it was “not inclined to sustain the petition or move forward at all until I get a clear picture of the guardianship and the origin of it in terms of guardianship papers or information from the probate court. I would like [DCFS] to look into both mother and father to see [if] maybe that’s an appropriate placement. I am concerned about what I read with regard to [the child’s] mental health. And I will sign any and all orders related to a psychological and a psychiatric evaluation of [the child], as well as the need for wraparound services.” The court declined to issue any formal restraining orders, but ordered the father to stay away from the legal guardian (D. B.). The court directed both mother and father to return to court and allowed them to have monitored visits with the child, who was in shelter care, while DCFS investigated placement possibilities and reported on the child’s mental health.
At the adjudication hearing on May 24, 2007, DCFS submitted an interim review report, prepared May 18, 2007, which contained updated information and interviews. The report detailed mother’s laudable rehabilitation achievements, employment and housing situation. Mother acknowledged that she had “procrastinated as far as having the Legal Guardianship revoked” and asserted she “had to make sure that I had myself together first.” Mother did not know what was “going on with [D. B.],” but believed that in D. B.’s home the child was disfavored and that the child and her oldest sister were being “treated badly.” The oldest sister, who had returned to live with mother for two years, told mother “a lot” about what transpired in D. B.’s home.
The juvenile court also had before it a progress report, dated May 22, 2007, from a psychologist and a therapist at the Los Angeles Child Guidance Clinic regarding outpatient mental health services for the child. From April through June of 2006, the child had attempted suicide three times, and the following month was hospitalized a fourth time for suicidal and homicidal ideation. From June of 2006 through February of 2007, the child was seen by clinic personnel primarily on an individual basis in clinic office and school settings. In January of 2007, the child ran away from home and was returned home by the police; family treatment was recommended, but declined by D. B. Since being placed in foster care in April of 2007, the therapist observed the child’s emotional and social improvements. Because of the child’s “steady progress in therapy since April 2007,” additional therapeutic behavioral services were not warranted. According to the report, “Her current treatment objectives focus on issues associated with her recent transition from her aunt’s home, loss and abandonment of her biological parents, history of abuse, over-eating and low self-esteem.”
The recommendation by DCFS was as follows: “[DCFS] recognizes the many positive things that the parents have accomplished in the years that they did not have custody of their children. In reviewing their statements and consulting with [the child’s] therapist and in speaking with [the child] herself, it is difficult to make a recommendation. It is at this point that the wants and needs of the child [ ] become[] first and foremost. [The child] wants to be with both of her parents. However knowing that her parents are not together and she has to make a choice she has stated to this reporter that she would like to be with her mother at this time with visitation with her father. [DCFS] is recommending that [the child] be placed with her mother with Family Maintenance services. Further that Legal Guardianship with [D. B.] is terminated.”
At the May 24, 2007, hearing, D. B. agreed to amended language in the petition, the matter was trailed to the next day due to the unavailability of father’s counsel, and the parents were granted unmonitored visits with the child, who was at a foster home. The next day, the court sustained the agreed upon amended petition, finding the child “has special and unique needs. The legal guardian [D. B.] has a limited ability to address such needs at this time. This inability to care creates a risk to the child’s emotional health and safety.” The court scheduled a contested disposition hearing and ordered the child to remain in her foster home until that date. The court ordered conjoint counseling for the child with father, mother and the legal guardian, and it also continued the visitation orders.
At the contested disposition hearing on July 5, 2007, DCFS submitted another review report, and again recommended that the child be released to her mother under a home of parent order with appropriate services, and that the legal guardianship be terminated. The July 2, 2007, progress report by the therapist and psychologist at the Los Angeles Child Guidance Clinic provided an update on the conjoint family treatment with the child, parents and the legal guardian. The child was “making steady progress in treatment in her current placement.” Since reconnecting with her parents and having increased attention from her family members, the child has a “happy demeanor.” Both the child and D. B. “seemed more relaxed and related easier. [The child] reported she has missed being at home with her aunt, sibling and cousin, and seeing her grandmother.” However, the child also indicated she felt “safest” with her foster parent because she feels “cared for and understood by her.” The child also indicated she felt safe with her mother “because she will stand up for me, and has a place for me in her home and somewhere for me to go to school.” The clinic’s progress report made no specific recommendation as to placement.
The juvenile court advised counsel at the hearing that “prior to the court making any further changes in the orders as they remain today, a [section] 728 motion needs to be filed by either [DCFS] or the minor’s counsel related to the recommendation of terminating legal guardianship. . . . But part of what I need to do is to make sure that I have the proper legal vehicle in front of me so that I can make orders and that the orders that I make lead toward permanency and stability of [the child.]” The court continued the contested disposition hearing to September 4, 2007, so a section 728 motion could be filed.
The contested disposition hearing concluded on September 4, 2007, with a new bench officer, Judge Donna Levin, presiding over the matter in lieu of the former bench officer, Judge Robin Miller Sloan. The child’s attorney advised the court that a section 728 motion had not been filed because it was not in the child’s best interests to remove the parents from the proceedings. Mother’s attorney explained that the parents had a legal right to participate because their parental rights had not been terminated and that mother sought custody of the child. DCFS urged termination of the guardianship, but did not want to proceed to do so yet in view of the child’s wishes.
The court indicated it could not terminate the guardianship without a “vehicle to terminate it with” and that it could not “release to the parents if the legal guardianship is in place.” However, mother’s attorney explained at length to the court the provisions of section 361.2, subdivision (a), and relevant case law (In re Catherine H. (2002) 102 Cal.App.4th 1284), which permitted physical custody of a child in a legal guardianship to be given to the parent at disposition, and counsel again requested that the child be released to mother.
The court responded by stating that “since I’m not familiar with this case--I did not hear the adjudication,” the matter should be trailed for a couple of days to allow mother’s attorney to prepare a trial brief and to get further input from counsel for the child and counsel for the legal guardian. Ultimately, however, the court continued the matter to the afternoon calendar. When the hearing resumed in the afternoon, the court stated, “We had a chambers conference with all attorneys and discussed the issues on this matter. The court gave some opinions or guidelines as to where the court feels this case should go.” Mother’s attorney asked that the child be released to mother “at this time” based on the “case and statute” cited earlier, but understood “that the court wishes to see some more visitation between the mother and the [child].” Mother’s attorney also requested conjoint counseling with the child (but with a different therapist), assistance in arranging visits with the foster mother, and discretion for weekend overnight visits.
The court remarked that mother “really needs to start visiting on a regular basis.” It admitted into evidence several DCFS reports. The court then found by clear and convincing evidence that there was a substantial danger to the child if she were returned to her legal guardian, and the court removed the child from D. B.’s physical custody for suitable placement. The court ordered unmonitored visits for mother and father, with discretion to liberalize visits to overnight and weekends, and monitored visits for D. B. with the paternal grandmother as monitor. And, DCFS was given discretion to permit the child to have overnight weekend visits with her paternal grandmother.
After D. B.’s counsel advised the court also to make a record regarding evidence of risk as to the parents, the court stated: “Court finds, by clear and convincing evidence, that the child is suffering severe emotional damage as indicated by extreme anxiety, depression, withdrawal or untoward aggressive behavior towards herself or others and there’s no reasonable means by which her emotional health can be protected without removing her from the physical custody of her parents at this time.” The court scheduled a progress report for the following month and a six-month review hearing for March 4, 2008.
Mother appeals. DCFS has filed no brief on appeal. However, DCFS filed a letter with this court, noting that because DCFS did not oppose mother’s request for placement of the child in her custody in the juvenile court, it would not take a contrary position on appeal.
DISCUSSION
I. General legal principles.
Pursuant to section 361, subdivision (c), when a section 300 dependency petition is filed alleging neglect or abuse by a parent or, as in the present case, by a legal guardian, clear and convincing evidence of a statutorily specified ground for removal of the child must be established before the court can take the child from the parent or legal guardian at the disposition stage of the proceedings. When a child is removed from a custodial parent or a legal guardian and there is a noncustodial parent who requests custody of the child, section 361.2 comes into play at the disposition hearing. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820-1821 (Marquis D.).)
Section 361.2, subdivision (a) provides as follows: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (Italics added.) The court must make “a finding either in writing or on the record of the basis for its determination.” (§ 361.2, subd. (c).)
In applying section 361.2, “the Legislature envisioned a two-step process: under subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending, noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court’s jurisdiction should be terminated.” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131.)
To deprive a noncustodial, nonoffending parent of physical custody of the child, the juvenile court must make the detriment finding under section 361.2 by clear and convincing evidence. (In re John M. (2006) 141 Cal.App.4th 1564, 1569 (John M.); Marquis D., supra, 38 Cal.App.4th at p. 1829.) The detriment finding under section 361.2 is similar to that under section 361, subdivision (c)(1), in that both require the same clear and convincing evidence standard of proof. However, section 362.1 “conspicuously does not require that the court find the noncustodial parent might fail to protect the child or that there are no reasonable means to protect the child in the noncustodial parent’s home in order to deny the noncustodial parent’s request for placement.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.)
On appeal, “‘We review the record in the light most favorable to the court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.” [Citation.]” (John M., supra, 141 Cal.App.4th at pp. 1569-1570.)
II. Substantial evidence supports the court’s disposition order denying mother physical custody at that time; nor did the court proceed under the wrong statute or make inadequate findings.
Mother contends the juvenile court committed several intertwined errors in its disposition on September 4, 2007. Contrary to mother’s assertions, when viewed in its proper context, the record reveals that the juvenile court proceeded under the proper statute (§ 361.2, subd. (a)), made the appropriate detriment findings, stated a factual basis for its finding that the child should not be placed in mother’s physical custody at that time, and acted with substantial evidence to support its conclusion of risk of harm to the child.
To a great extent, the fatal flaw in mother’s argument is the emphasis on mother’s exemplary personal success story and her commendable rehabilitation efforts, rather than on detriment to the child. The statutory scheme requires that we focus on the possible detriment to the well-being of the child, which can be attributable to factors extraneous to mother. As aptly noted by mother, not she but D. B. was apparently responsible for the child’s emotional damage. Nonetheless, the child’s emotional state, regardless of how it occurred, could forestall the mother’s custody of the child, if detriment to the child’s emotional health could ensue by placement with mother.
As stated in section 361.2, subdivision (a), the court shall place the child with the parent requesting custody “unless it finds that placement with that parent would be detrimental to the . . . emotional well-being of the child.” Here, the court stated: “Court finds, by clear and convincing evidence, that the child is suffering severe emotional damage as indicated by extreme anxiety, depression, withdrawal or untoward aggressive behavior towards herself or others and there’s no reasonable means by which her emotional health can be protected without removing her from the physical custody of her parents at this time.” (Italics added.)
Mother faults this finding by the court for several reasons. Mother notes that the finding was prompted by a reminder from D. B.’s counsel to make a “record as to clear and convincing evidence of risk as to the parents,” and that the language used by the court largely tracked the statutory language of section 361, subdivision (c)(3), a statute applicable only if the child resided with the parent when the petition was filed. (See Marquis D., supra, 38 Cal.App.4th at pp. 1824-1825.) However, no magic words need be uttered by the court to satisfy the requirement of a finding on the record of detriment to the child, under section 361.2, subdivisions (a) and (c). And, the juvenile court was fully aware of section 361.2, subdivision (a), because mother’s attorney had repeatedly cited and discussed with the court at some length the application of that statute.
Even assuming arguendo the juvenile court had in mind the wrong statute, it is of no consequence here. The court’s explicit and unchallenged finding that “the child is suffering severe emotional damage as indicated by extreme anxiety, depression, withdrawal or untoward aggressive behavior towards herself or others” supports by clear and convincing evidence the requisite detriment to the “emotional well-being of the child” (§ 361.2, subd. (a)) if the child were abruptly placed in mother’s physical custody.
Indeed, it is apparent that the court was concerned about the effect on the child of mother’s relatively recent re-entry into the life of this emotionally troubled child. Mother acknowledged that as of May of 2007 she had not seen the child “for about two years,” and the court pointedly remarked at the disposition that mother “really needs to start visiting on a regular basis.”
Mother’s reliance on Marquis D., supra, 38 Cal.App.4th 1813, is unpersuasive. In that case, a nonoffending father of six children, who maintained regular contact and visitation, requested custody of the children at the disposition hearing after a petition was sustained with respect to their mother’s abuse and neglect. (Id. at pp. 1816-1820.) The juvenile court erroneously removed the children from the father’s physical custody pursuant to section 361. The social services agency conceded both that the juvenile court had used the wrong statute and that there was no express finding of detriment or factual basis stated by the juvenile court. (Id. at p. 1821.) The Court of Appeal in Marquis D. concluded, “We are not satisfied on this record that the trial court adequately explored whether placing the children with [father] would be detrimental to them within the meaning of section 361.2, subdivision (a) or that implied findings are warranted.” (Marquis D., at p. 1825.)
Here, however, there were actual findings on the record, as previously noted. Thus, there is no need to imply the requisite findings. Also, in contrast to Marquis D., the record in the present case establishes that the juvenile court did explore whether placing the child with mother at that time would have been detrimental to the child. The court here found that it would have been detrimental to the emotional health of the child, given her apparently fragile emotional and psychological state.
Nor is there any merit to mother’s assertion that the juvenile court was unaware that it could give physical custody of the child to mother without terminating the legal guardianship. Although the court initially stated that such was its understanding, mother’s attorney specifically informed the court otherwise. Counsel corrected the court’s misunderstanding by citing relevant case law (In re Catherine H., supra, 102 Cal.App.4th 1284) and statutory authority (§ 361.2). Under the circumstances herein, we decline the invitation to use the court’s initial comment to impeach its findings. (See People v. Montano (1979) 96 Cal.App.3d 221, 226-227.) We must assume the court was aware of all applicable laws.
We acknowledge that mother has mustered arguably substantial evidence sufficient to support her physical custody of the child, and she analogizes to the facts in John M., supra, 141 Cal.App.4th at pages 1570-1571. However, each case must be decided on its own facts. Significantly, the order under review “will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result” if had it focused on other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Accordingly, reviewing the matter in the light most favorable to the disposition order (Marquis D., supra, 38 Cal.App.4th at p. 1825), the juvenile court did not err. We will not disturb the court’s order, which, in pertinent part, maintained placement of the child with the foster parent, permitted unmonitored visits by mother and monitored visits by D. B., and scheduled a six-month review hearing for March 4, 2008.
III. The court did not abuse its discretion in conducting the disposition hearing without probate court guardianship documents, or by ordering reunification services and a continuation of the guardianship without such information.
Mother asserts that the juvenile court failed to properly exercise its discretion because it continued D. B.’s legal guardianship over the child and ordered family reunification services for D. B. without reviewing the probate court guardianship documents and without obtaining the previously ordered psychological evaluation of the child. The bench officer initially presiding over the case (Judge Sloan) had ordered probate documents and a psychological evaluation of the child, and had requested the filing of a section 728 motion to terminate the guardianship. However, the bench officer at the disposition hearing (Judge Levin) proceeded without such documents.
At the disposition hearing, counsel for the child did not deem it appropriate “at this time” to file a section 728 motion. Counsel for DCFS then decided that in view of the child’s position, it would not proceed on its previously advocated position of termination of guardianship. Under such circumstances, there is no reversible error in proceeding without the requested section 728 motion.
Mother complains on appeal about the granting of reunification services for D. B. However, counsel for mother specifically stated at the disposition, “I have no position on whether or not the legal guardian should or should not be given family reunification services.” She should be hard-pressed to complain about it now.
Although at the September 4, 2007, disposition hearing, the court proceeded without the psychological study it had initially requested, the child’s psychological state was well known. The psychologist and the therapist at the Los Angeles Child Guidance Clinic had jointly filed progress reports in May and July of 2007. The court’s finding--that “the child is suffering severe emotional damage as indicated by extreme anxiety, depression, withdrawal or untoward aggressive behavior towards herself or others”--was not contested by anyone. Thus, the absence of the requested psychological study is not reversible error.
Accordingly, the juvenile court did not abuse its broad discretion at the disposition hearing.
DISPOSITION
The order under review is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.